Citation Nr: 0725458
Decision Date: 08/16/07 Archive Date: 08/22/07
DOCKET NO. 05-07 399 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUES
1. Entitlement to service connection for an acquired
psychiatric disorder, to include post-traumatic stress
syndrome (PTSD).
2. Does activation of the National Guard for a natural
disaster qualify as "active duty" for purposes of service
connection.
REPRESENTATION
Appellant represented by: West Virginia Division of
Veterans Affairs
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
K. Fitch, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1947 to May
1950, and again from October 1961 to October 1962. The
veteran also had service with the National Guard.
This matter comes before the Board of Veterans' Appeals
(Board) from a May 2004 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Huntington,
West Virginia that denied service connection for PTSD. The
veteran perfected an appeal of this determination to the
Board.
In May 2007, the veteran and his spouse, accompanied by the
veteran's representative, testified at a hearing conducted
before the undersigned Veterans Law Judge. A transcript of
these proceedings has been associated with the veteran's
claims file.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
After a careful review of the claims folder, the Board finds
that the veteran's claim must be remanded for further action.
Here, the Board notes that the veteran's medical records
indicate an unsure diagnosis regarding his condition. The
veteran has been diagnosed with PTSD, but has also been
assessed as rule out anxiety disorder, NOS with depressive
features and rule out PTSD, non-combat, chronic.
The veteran also indicated several stressors possibly
underlying his condition. He indicated in testimony before
the Board that during his first period of active service he
served at the Brooklyn Army Navy Yard and helped unload and
process the caskets of dead servicemen who were being
returned from the battlefields of Europe after World War II.
The veteran also indicated that he was activated during the
Cuban Missile Crisis in 1961 and 1962. He was assigned to
military funeral detail at the time, and indicated that it
bothered him greatly. Some of the funerals in which he
assisted were for servicemen around his own age. Finally,
the veteran indicated that his National Guard unit was
activated for the Buffalo Creek Flood that occurred in West
Virginia on February 26, 1972. The veteran stated that he
was assigned to rescue and recovery, and that this entailed
recovering some of the 125 or so people and children that
drowned in the flood and taking them to a makeshift morgue
set up in a school.
Based on the foregoing, the Board concludes that the veteran
should be afforded a VA examination in connection with his
claim. Here, the Board notes that the veteran's claims file
presents potentially differing diagnoses of his condition.
The Board also notes that the veteran should be allowed an
opportunity to verify his active duty stressors. A VA
examination is warranted in order to determine whether the
veteran has PTSD and, if so, whether the condition is related
to a verified in-service stressor. The veteran should also
be given an additional opportunity to verify any stressors,
by buddy statements or otherwise, prior to a VA examination.
Prior to affording the veteran a VA examination in connection
with his claim, the veteran should be afforded an opportunity
to submit additional evidence relevant to his claim. Here,
the Board notes that the veteran indicated that he has been
treated for his condition at the Huntington, West Virginia VA
Medical Center, as well as the Charleston, VA clinic.
Records dated to March 2005 from the Huntington facility have
been associated with the record, but the veteran's claims
file does not contain records from the Charleston facility.
Upon remand, therefore, the RO should update the veteran's
claims file with records from these facilities, dated March
2005 for the Hunting West Virginia VA Medical Center, and
dated since service from the Charleston facility. In this
regard, the Board notes that records generated by VA
facilities that may have an impact on the adjudication of a
claim are considered to be constructively in the possession
of VA adjudicators during the consideration of a claim,
regardless of whether those records are physically on file.
See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v.
Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the
VCAA, VA must obtain these outstanding VA and private
records. See 38 U.S.C.A. § 5103A(b-c) (West 2002); 38 C.F.R.
§ 3.159(c) (2004).
Finally, during the pendency of this appeal, the United
States Court of Appeals for Veterans Claims (Court) issued a
decision in Dingess v. Nicholson, 19 Vet. App. 473 (2006),
which held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five
elements of a service connection claim, including the degree
of disability and the effective date of an award. In the
present appeal, the veteran was provided with notice of what
type of information and evidence was needed to substantiate
his claims, but he was not provided with adequate notice of
the type of evidence necessary to establish a disability
rating or effective date. Upon remand therefore, the
veteran should be given proper notice under 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b), that informs the veteran
that a disability rating and an effective date for the award
of benefits will be assigned if service connection is
awarded, and also includes an explanation as to the type of
evidence that is needed to establish both a disability
rating and an effective date.
In view of the above, this matter is REMANDED to the RO for
the following actions:
1. The RO should send the veteran, and
his representative, if any, a letter that
contains a notice under 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b), that
includes an explanation as to the
information or evidence needed to
establish a disability rating and
effective date for the claim addressed in
this remand, as outlined by the Court in
Dingess v. Nicholson, 19 Vet. App. 473
(2006).
2. The RO should contact the veteran and
request that he identify all VA and non-
VA health care providers, not already
associated with the veteran's claims
file, that have treated him since service
for PTSD. This should specifically
include any medical treatment records
from the Huntington, West Virginia VA
Medical Center, dated since March 2005,
and from the Charleston VA facility,
dated since service. The aid of the
veteran in securing these records, to
include providing necessary
authorizations, should be enlisted, as
needed. If any requested records are not
available, or if the search for any such
records otherwise yields negative
results, that fact should clearly be
documented in the claims file, and the
veteran should be informed in writing.
3. The RO should contact the veteran and
request that he provide any information,
including dates, locations, names of
other persons involved, etc., relating to
claimed service stressors. The veteran
should be advised that this information
is necessary to obtain supportive
evidence of the claimed stressful events
in service and that he must be specific
as possible, because without such details
an adequate search for verifying
information cannot be conducted. The
veteran should also be advised that he
should provide buddy statements or other
corroborating testimony that may support
his stressors. The RO should afford the
veteran an opportunity to submit and/or
identify any alternate available sources
that may provide credible support
regarding his claimed stressors.
4. The RO must then review the entire
claims file, including the veteran's
medical treatment records and previous
statements of stressors, and any
information submitted by other
individuals or otherwise obtained
pursuant to this remand, and prepare a
summary of all claimed stressors. A
summary of the stressors, and all
associated documents, should be sent to
the U.S. Army and Joint Services Records
Research Center (JSRRC), formerly the
U.S. Armed Services Center for Research
of Unit Records (USASCRUR), 7701
Telegraph Road, Kingman Building, Room
2C08, Alexandria, VA 22315-3802. The
JSRRC should be requested to provide any
information that might corroborate the
veteran's alleged stressors. The RO
should also request that the JSRRC or
NPRC, as appropriate, provide any morning
reports, unit action, and unit status
reports for the veteran's unit covering
the dates specified by the veteran in
regards to his alleged stressors. If the
RO is unable to corroborate a stressor,
the RO must inform the veteran of the
results of the requests for information
about the stressors.
5. After associating with the claims
folder all available records received
pursuant to the above-requested
development, the veteran should be
afforded a VA psychiatric examination to
determine the current nature and extent
of any psychiatric disability found to be
present. All necessary special studies
or tests should be accomplished. It is
imperative that the examiner who is
designated to examine the veteran reviews
the evidence in the claims folder,
including a complete copy of this REMAND,
and acknowledges such review in the
examination report. The report of
examination should contain a detailed
account of all manifestations of any
psychiatric disability found to be
present. All necessary tests should be
conducted, and the examiner must
specifically rule in or exclude a
diagnosis of PTSD. In doing so, the
examiner should comment on the medical
evidence of record. If the examiner
diagnoses the veteran as having PTSD, the
examiner must specifically indicate the
stressor or stressors underlying that
diagnosis and offer an opinion as to the
likelihood that there is a link
established by the medical evidence
between the veteran's PTSD and such
stressor(s). If the examiner is unable
to provide the requested information with
any degree of medical certainty, the
examiner should clearly indicate that.
The examiner should set forth the
complete rationale for all opinions
expressed and conclusions reached, in a
legible report.
6. After completion of the foregoing,
the RO should re-adjudicate the veteran's
claims. If any determination remains
adverse to the veteran, he and his
representative must be furnished a
supplemental statement of the case and be
given an opportunity to submit written or
other argument in response thereto before
the claims file is returned to the Board
for further appellate consideration.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
_________________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006
).